Justices' punt on gay marriage could put La. cases in spotlight

Decision to uphold same-sex marriage ban breaks recent trend

The Supreme Court can be seen from the view from near the top of the Capitol Dome on Capitol Hill, Thursday, Dec. 19, 2013, in Washington. (AP Photo/Susan Walsh)

The U.S. Supreme Court’s decision on Monday not to delve further into whether gay couples should be allowed to marry sets the stage for similar cases out of Louisiana to possibly head to nation’s highest court.

The justices opted not to review decisions in cases out of five states where federal appeals courts have struck down same-sex marriage bans — Indiana, Oklahoma, Utah, Virginia and Wisconsin.

The court’s inaction means same-sex marriages are now legal in those states and eventually are expected to become legal in other states included in the appeals courts’ jurisdictions. But it also should bring more attention to the 5th U.S. Circuit Court of Appeals’ pending review of a ruling last month by U.S. District Judge Martin Feldman, who upheld Louisiana’s ban on same-sex marriage in a group of cases out of New Orleans.

Feldman is the only federal district judge to uphold a state ban on same-sex marriage since the U.S. Supreme Court’s decision last year in U.S. v. Windsor struck down part of the federal Defense of Marriage Act.

Just three weeks after Feldman’s opinion, 15th Judicial District Judge Edward Rubin reached the opposite conclusion, ruling the state’s ban unconstitutional in a case out of Lafayette Parish that the state is appealing to the Louisiana Supreme Court. Rubin compared the state prohibition on gay couples marrying to segregation-era laws against interracial marriage.

Any decision from either the state Supreme Court or the 5th Circuit upholding Louisiana’s ban on same-sex marriage could attract the attention of the U.S. Supreme Court.

“I certainly think there is going to be much more of a focus on the Louisiana cases,” said Camilla Taylor, an attorney with gay rights group Lambda Legal, which was involved in some of the cases that had been pending before the U.S. Supreme Court.

That assessment is shared by Kyle Duncan, the attorney hired by the Louisiana Attorney General’s Office to argue in support of the state’s same-sex marriage ban in the federal case in New Orleans and the state court case in Lafayette.

“If courts out there start going the other direction … then you are going to have a real split in authority and more reason for the Supreme Court to step in,” Duncan said.

The U.S. Supreme Court’s move on Monday does not legalize same-sex marriages nationwide and applies only to the states within the jurisdiction of federal appeals courts with cases being considered for review — the 4th Circuit, the 7th Circuit and the 10th Circuit.

The expected result is that the number of states allowing same-sex marriage will rise from 19 to 30, but because the high court did not actually issue a decision one way or the other, existing same-sex marriage bans in Louisiana and other states beyond the jurisdiction of those appeals courts are still considered good law.

“As of today, it doesn’t bring any changes to couples in Texas, Louisiana and Mississippi,” said Forum for Equality Louisiana Chairman-elect Chris Otten, referring to the states under the jurisdiction of the 5th Circuit.

The Forum for Equality has led the recent challenge to Louisiana’s same-sex marriage ban in federal court in New Orleans.

Divining what Monday’s announcement says about the leanings of the U.S. Supreme Court justices is like reading tarot cards, Otten said.

Otten views it as the U.S. Supreme Court deciding not to wade into the contentious legal issue until a federal appeals court upholds a state ban on same-sex marriage, creating a split among the appeals court circuits.

“I think today (Monday) they signaled that they would not touch this unless they had to,” Otten said. “… When a split develops, they almost have an obligation to take it.”

Others have taken the ruling to mean that the high court, by allowing same-sex bans to fall away in several states, might be signaling a stance on the issue — essentially declaring support for gay marriage.

Duncan said he sees Monday’s announcement as a message that the high court is simply not ready to take it up.

“They want to wait and see the issue develop more,” he said.

That view seems to match comments made by Justice Ruth Bader Ginsburg during a talk last month at the University of Minnesota law school, where she said there is “no need for us to rush” if no rulings emerged to compete with the existing appeals court decisions striking down same-sex marriage bans.

Ginsburg specifically mentioned the 6th Circuit, which already heard arguments and is expected to rule soon.

The 6th Circuit is made up of Kentucky, Michigan, Ohio and Tennessee.

If the 6th Circuit upholds the state bans and gives the U.S. Supreme Court a conflicting case to consider, Otten said, “it may not even be an issue for the 5th Circuit.”

But if it turns out the 5th Circuit is the only appeals court to uphold a ban on same-sex marriage, it seems likely the Louisiana case could be on its way to the Supreme Court, Loyola University New Orleans College of Law professor Monica Hof Wallace said in an email.

“If the Fifth Circuit affirms the Louisiana decision, I would be surprised if the Supreme Court does not take the case,” she said. “If the Fifth Circuit reverses the Louisiana decision, then the country is one step closer to legalizing same-sex marriage without the Supreme Court having to get involved.”

Otten cautioned against any assumption about how the conservative 5th Circuit might rule, because the critical factor is which three appeals court judges are assigned to rule on the case.

“There is a reputation, but it really depends on the panel you get,” he said.

Of the two pending same-sex cases in Louisiana, the federal case likely will be decided first, as the Supreme Court has not decided whether to even hear the Lafayette case.

The 5th Circuit, on the other hand, has fast-tracked the appeal of Feldman’s ruling and will assign it to the same panel of judges that will hear a federal case out of Texas.

The appeals court has set a Nov. 7 deadline for attorneys in the Louisiana case to file briefs on the issue.

No date has been set for arguments.

At play in the federal case is Feldman’s interpretation of the U.S. Supreme Court’s Windsor decision, which the Louisiana plaintiffs relied upon in their arguments.

Justice Anthony Kennedy, who wrote the opinion, said the federal government must recognize the marriage of same-sex couples because it otherwise demeans those marriages compared with traditional ones.

But Feldman argued that Kennedy still made clear the states, not the federal government, should be allowed to define marriage.

“Windsor repeatedly and emphatically reaffirmed the long-standing principle that the authority to regulate the subject of domestic relations belongs to the states,” Feldman wrote.